Two Guys From Harrison, Inc. v. Furman

160 A.2d 265, 32 N.J. 199, 1960 N.J. LEXIS 200

• Court: Supreme Court of New Jersey
• Decided: April 4, 1960
• Status: Published

Opinions

The opinion of the court was delivered by

Weintbatjb, C. J.

Plaintiffs attack the so-called Sunday Closing Law, chapter 119 of the Laws of 1959, N. J. S. 2A :171-5.1 et seq. They moved for summary judgment and the Attorney General countered with a motion for judgment on the pleadings. The trial court denied plaintiffs’ motion and granted defendant’s. 58 N. J. Super. 313 (Law Div. 1959). We certified plaintiffs’ appeal before the Appellate Division acted upon it.

Preliminarily it is well to sketch some highlights of the history of Sunday legislation. Its genesis is traced to the command at Mount Sinai:

“Ye shall keep the sabbath therefore; for it is holy unto you: everyone that defileth it shall surely be put to death: for whosoever doeth any work therein, that soul shall be cut off from among his people. Six days may work be done; but in the seventh is the sabbath of rest, holy to the Lord; whosoever doeth any work in the sabbath day, he shall surely be put to death.” (Mxodus 31:14,15.)

Pfeffer, Church, State and Freedom (1953), p. 227. The Sabbath of Sinai was the seventh day and so remains for the members of some minority faiths, but for most Christians it is the first day of the week.

It is probably true, as Pfeifer points out (p. 229), that Sunday legislation was historically the product of Church-State unions. The American colonists brought with them the tradition of a state-established religion, Tudor v. Board of Education of Rutherford, 14 N. J. 31, 39 (1953), cert. denied, 348 U. S. 816, 75 S. Ct. 25, 99 L. Ed. 644 (1954), and perhaps solely for sectarian reasons the authority of colonial government was exerted to support the Christian Sabbath. Pfeffer, p. 228. Thus on December 2, 1675, an act was adopted to prohibit “any kind of servile work, unlawful recreations, or unnecessary travels” on the “Lord’s Day,” excepting only works of mercy or necessity. Acts of the General Assembly XI, Learning & Spicer, Grants & Concessions (2d ed. 1881), p. 98. See also Learning & Spicer, op. cit., p. 124, p. 245; Allinson, Acts of the General Assembly of the Province of New Jersey (1776), pp. 3, 4.

The first comprehensive legislation after the Revolution, entitled “An Act for suppressing vice and immorality,” was enacted on March 16, 1798. Paterson’s Laivs (1800), p. 329, et seq. This statute, which follows basically the approach of the colonial act, went beyond the English statute of 1676, 29 Car. II, c. 7, the prototype for most legislation by the states. The English statute prohibited the pursuit of one’s usual vocation, whereas our act was not thus confined, with the result, for example, that a Sunday contract, unrelated to the usual occupation of the parties, was held to be unlawful. Reeves v. Butcher, 31 N. J. L. 224, 225 (Sup. Ct. 1865).

In 1926 the Hew Jersey Blue Law Revision Commission was created by Joint Resolution. In its final report of January 7, 1927, the Commission recommended that all forms of recreation be permitted on the Sabbath, subject to municipal regulation. Eive bills (A-l, 32, 42, 70 and 252) were introduced in the Assembly but none passed. The statement attached to A-42 noted that “By a general failure to enforce the present vice and immorality act, the public shows it wants no restrictions on the right to observe Sunday as the individual citizen sees fit with the possible exception that there should not be tolerated on that day amusements for pecuniary profit.”

Eor present purposes, we recite some of the provisions of the Sunday Law as continued in the revision of 1937. B. 8. 2:207—1 to 30. The first section imposed a fine of $1 for a violation of its provisions:

“No traveling, worldly employment or business, ordinary or servile labor or work either upon land or water, except works of necessity and charity, and no shooting, fishing, * * * sporting, hunting, gunning, racing, frequenting of tippling houses, or any interludes or plays, dancing, singing, fiddling or other music for the sake of merriment, playing at football, fives, nine pins, bowls, long bullets or quoits, nor any other kind of playing, sports, pastimes or diversions shall be done, performed, used or practiced by any person within this state on the Christian Sabbath, or first day of the week, commonly called and hereinafter designated as Sunday.”

Section 2 excluded from the ban against traveling, the “going to or returning from any church or place of worship within the distance of twenty miles, or going to call a physician, surgeon or midwife, or carrying mail to or from any post office, or going by express by order of any public officer * * *.” Section 5 excluded “the dressing of victuals in private families or in lodging houses, inns and other house's of entertainment for the use of sojourners, travelers or strangers.” Section 6 prohibited selling. Section 11 provided for a fine of $8 if any stage shall be driven “and sufficient reason shall not be offered to show that it be done in cases of necessity or mercy,” etc.

The foregoing illustrates the stern approach of the Sunday law. The sole significant exception (B. 8. 2:207-18 et seq.) permitted, but only upon adoption of the act by municipal referendum, any person to:

“* * * (a) print, publish and sell newspapers, (b) sell and deliver milk, (c) walk, ride or drive for' recreation, (d) hire horses and carriages or other conveyances for riding and driving, or (e) engage or take part in any form of recreation, sport, or amusement that is not unlawful on other days of the week, if in so doing such person or corporation does not disturb others in their observance of Sunday,”

subject to local regulation of recreation, sports or amusements. This exception was introduced by P. L. 1933, c. 115, although it had first appeared in somewhat different form in P. L. 1893, c. 34.

In 1951 there began a series of events which contributed a comic-opera touch to this delicate subject. In that year, Title 3 was revised. With respect to Sunday laws, the tentative draft cryptically recommended “Repeal, obsolete.” The backdrop was widespread indifference to “blue laws,” the archaic character of much of its content, and the absurdly ineffectual penalties then existing ($1 for most violations). The Legislature however did not follow the recommendation but rather revised the language and eliminated all penalties. The foreword to the revision explained:

“The general object of the Revision of the Sunday laws (N. J. S. 2A:171-1 to 2A ¡171-12) was not to make broad changes in substance, but rather to eliminate obsolete provisions. It was intended to leave municipalities with the power, they theretofore had, to control and regulate Sunday activity.”

N. J. 8. 3A :171-1 of the 1951 revision replaced extensive verbiage with a single sentence:

“No worldly employment or business, except works of necessity and charity, shall be performed or practiced by any person within this state on the Christian Sabbath, or first day of the week, commonly called and hereinafter designated as Sunday.”

Yet the sweep of the “blue law” remained. Whereas in other jurisdictions the concept of “necessity” could be and was inflated to meet reasonably the taste and habits of new generations, here the term remained inelastic. This was so because the following section, N. J. S. 3A :171-3, excluded only “the preparation and sale of drugs, meals, prepared food and non-alcoholic beverages on Sunday” and “sales of alcoholic beverages which are otherwise subject to regulation under Title 33 of the Revised Statutes.” Furthermore, although the explicit prohibition against “traveling” and various recreational activities expressed in the earlier statute was not specifically repeated in the revision, yet N. J. S. 2A :171-6 continued the earlier provision which, only upon adoption of the act by local referendum, permitted walking, riding or driving for recreation; hire of conveyances for riding and driving; participation in any form of recreation, sport or amusement; and such routine matters as the publication and sale of newspapers and the sale and delivery of milk. See Hertz Washmobile System v. South Orange, 41 N. J. Super. 110, 130-31 (Law Div. 1956), affirmed 25 N. J. 207 (1957). Thus the rigid policy of the earlier law was continued, without, however, the aid of penalties.

The revision of 1951 presumably placated the religiously sensitive without pain to those who preferred secular pursuits. In the year of its adoption the solution was not provocative; indeed it came virtually without comment. But shortly thereafter the scene changed. Eetail operations spread rapidly upon highways and Sunday selling mounted dramatically. The urban merchant could not effectively meet the challenge. The major roads, already burdened by non-commercial travel, strained under the added stress. Eeligious observants of the Lord's Day resented the added hustle and bustle. Economic pressures compelled labor by many who preferred diversion. Thus Sunday closing returned to the stage. Motivations, divergent and internally incongruous, converged upon a single objective. What historically may have been solely a matter of religious concern became a social and economic issue. The statute had not been designed to meet the new problem.

Events moved so rapidly that the revision of 1951 was soon before us for interpretation. An effort was made to prosecute a Sunday operation on the thesis that despite the repeal of the $1 penalty the revision should be held to denounce an infraction as a disorderly persons offense, carrying a maximum penalty of one year imprisonment and a fine of $1,000. A majority of the court could find no such purpose, adding that while the statute’s “effect on a criminal proceeding instituted, such as the one here, produces an anomaly the most that this court can do is call the attention of the Legislature to the result.” State v. Fair Lawn Service Center, Inc., 20 N. J. 468, 474 (1956).

As noted above, the foreword of the 1951 revision stated municipalities retained “the power, they theretofore had, to control and regulate Sunday activity.” Municipalities sought to meet the new problem but faced formidable difficulties. Eirst, municipalities, if they legislated, had to adhere to the unrealistic and generally unpalatable policy of the State as established and continued in the revision. We are informed that but three of the 567 municipalities adopted conforming ordinances. Efforts to adopt different policies failed because of the restraining effect of the policy established by the state law. Auto-Rite Supply Co. v. Woodbridge Twp., 25 N. J. 188 (1957); Hertz Washmobile System v. South Orange, 25 N. J. 207 (1957). Second, the problem not being localized by municipal boundaries, a municipality could not protect itself from the activities of its neighbors. Hence pressure developed for a state-wide or regional approach.

Among the sections of the State, economic interests and citizen habits were irreconcilable. The resort areas or much of them wanted no part of Sunday closing. A compromise emerged in the form of chapter 138 of the Laws of 1958, N. J. S. 2A :171-5.1 et seq. It prohibited the sale of certain categories of commodities in 18 of the 21 counties. That act was declared unconstitutional in Sarner v. Township of Union, 55 N. J. Super. 523 (Law Hiv. 1959) on the ground that the exclusion of three counties was arbitrary. No appeal was prosecuted.

Thereupon the Legislature adopted the statute assailed in the present case. It follows substantially the pattern of the act adjudged invalid in Sarner except that in lieu of the provision for operative effect in 18 counties the act is operative only in such of the 21 counties as may adopt it upon referendum. At the election of November 1959 the act appeared on the ballot in 15 counties. It was adopted in 12 and failed in the remaining three. The present case was started before the election but decision was withheld, apparently by consent, until after the votes were tallied.

I.

Plaintiffs assert the statute is beyond the police power of the State; that it contravenes the ban against the union of State and Church in the Federal Constitution (First and Fourteenth Amendments) and in the State Constitution (Art. I, par. 4); and that if the act can survive critical inquiry as to power to legislate, nonetheless the classification of what may and may not be sold denies equal protection of the law guaranteed by the Fourteenth Amendment and the State Constitution. Washington National Insurance Company v. Board of Revieiv, 1 N. J. 545 (1949). Reliance is also placed upon the concluding paragraph of Article IY, § 7, par. 9 of the State Constitution, providing that “The Legislature shall pass general laws * * * for all * * * cases which, in its judgment, may be provided for by general laws.”

The Legislature did not recite the facts it found. Nor is there any legislative history to aid us in this fundamental inquiry. We accordingly must probe for the answer within the context of the statute itself with such help as the general background of the subject may afford. Our task is made even more difficult by the circumstance that we must choose between what the Legislature said and what it did. Specifically, in our view as will presently be enlarged upon, the validity of chapter 119 depends upon whether it merely supplements the revision of 1951, N. J. S. 2A :171-1 ei seq. (hereinafter called “the 1951 revision”) or supersedes its policy.

Chapter 119 is entitled:

“An act concerning the observance of the first day of the week, commonly known as Sunday, and providing penalties for engaging in the business of selling or offering to sell or attempting to sell clothing or wearing apparel, building and lumber supply materials, furniture, household and office furnishings and appliances on Sunday, and supplementing chapter 171 of Title 2A of the New Jersey Statutes, and providing that such act shall not be operative in any county unless and until the voters thereof by referendum shall determine that it shall apply therein.”

Section 1 prohibits the sale or offer to sell at retail, wholesale or auction of the categories of articles described in the title “except as works of necessity and charity or as isolated transactions not in the usual course of the business of the participants.” A violator is made a disorderly person. The fines are graduated to a maximum of $500 depending upon the number of offenses, and imprisonment for 30 days is additionally authorized for a third offense and up to six months for a fourth or subsequent offense. A single sale or offer constitutes a separate violation. Section 2 further provides that upon four convictions the premises shall be deemed a nuisance. Section 4 reads in part:

“This act shall be construed as an additional remedy to secure proper Sunday observance * *

II.

In dealing with the constitutional attacks, we shall first assume chapter 119 is a supplement to the 1951 revision and is designed to provide “an additional remedy” for its enforcement, as the Legislature has described it.

A.

The first issue is whether the 1951 revision violates the edict of the First Amendment as made applicable by the due process clause of the Federal Constitution, that a state:

“* * * shall make no law respecting an establishment of religion,”

or of Article I, par. 4 of the Slate Constitution that:

“There shall be no establishment of one religious sect in preference to another.”

If the revision is thus vulnerable, both it and chapter 119, as a mere supplement to it, would fall.

We have no doubt that our State Constitution forbids Sunday legislation designed to support as such the tenets of any sect, however dominant, or to protect as such the religious sensibilities of members of any faith or for that matter of all faiths. In Tudor v. Board of Education, supra (14 N. J. 31), this court unanimously held that a board of education could not permit the distribution of the King James version of the Hew Testament. The court there accepted (14 N. J., at page 44) as definitive of the State Constitution the view of the Federal Constitution expressed in Everson v. Board of Education, 330 U. S. 1, 15, 18, 67 S. Ct. 504, 91 L. Ed. 711, 723, 724-25 (1947) :

“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. * * *

* * * That Amendment [First] requires the state to be neutral in its relations with groups of religious believers and non-believers.”

Hence if the 1951 revision was fashioned for such purpose, we could not sustain it under the Constitution of our State. We think that upon the same hypothesis the United States Supreme Court would reach the same result under the Federal Constitution. This, we believe, is the inevitable thrust of the opinions of that tribunal discussed in Tudor. Indeed, in Zorach v. Clauson, 343 U. S. 306, 314, 72 S. Ct. 679, 96 L. Ed. 954, 962 (1952) appears the incidental observation that a state “may not coerce anyone * * * to observe a religious holiday,” which, we take it, refers not only to compulsion to attend services but also to compulsion to desist from activity merely because it offends the creed of others. We find nothing to the contrary in Hennington v. Georgia, 163 U. S. 299, 16 S. Ct. 1086, 41 L. Ed. 166 (1896); Petit v. Minnesota, 177 U. S. 164, 20 S. Ct. 666, 44 L. Ed. 716 (1900) or in Friedman v. People, 341 U. S. 907, 71 S. Ct. 623, 95 L. Ed. 1345 (1951), which dismissed for want of a substantial federal question the appeal from the judgment of the New York Court of Appeals, 302 N. Y. 75, 96 N. E. 2d 184 (1950). In none of those cases was the state law deemed locally to be a measure to protect as such the religious character of the Sabbath. The rationale of the statutes in Hennington and Petit was in secular terms, to protect the public health and welfare against the hurt of uninterrupted labor. And in Friedman, the New York court carefully eschewed a religious objective, saying the Legislature “recognizes Sunday as a day for rest, play, relaxation and recreation rather than merely as a religious Sabbath.” (96 N. E. 2d, at page 186.) Cf. Two Guys from Harrison-Allentown, Inc. v. McGinley, 179 F. Supp. 944 (D. C. E. D. Pa., Dec. 1, 1959), probable jurisdiction noted, 80 S. Ct. - (1960); Crown Kosher Super Market of Mass., Inc. v. Gallagher, 176 F. Supp. 466 (D. C. Mass. 1959), probable jurisdiction noted, 80 S. Ct. - (1960).

If in truth Sunday statutes were enacted in the Colonies solely to achieve sectarian ends, it would be of no consequence in this constitutional inquiry. We think it plain that the ban against the union of Church and State was intended to break with the past rather than to imbed the practices the colonists had brought with them. Everson v. Board of Education, supra. The union of Church and State had spawned centuries of bloodshed and oppression. Religious persecution and discrimination continued in the New World. See Tudor and Everson, supra. Even our colonial Constitution of 1776, while assuring freedom of worship (Art. XVIII) and prohibiting the establishment of a religious sect (Art. XIX), guaranteed only members of the Protestant faith against the denial of civil rights and the right to hold public office (Art. XIX). It was upon, our soil that religion was truly liberated, and this by divorcement from both the support and the restraint of government. The “wall of separation” rose from a conviction, easily renewed from current events elsewhere, that the union of Church and State is mutually baneful, incurring for each the hostility of those who dissent from the other.

The question, therefore, is whether the 1951 revision was in fact enacted to serve religious interests. Preliminarily, it may be said that an affirmative answer cannot be found in the naked circumstance that the policy of a statute coincides with the views of a sectarian group. Eor example, the State may denounce murder, larceny, and adultery, notwithstanding that religions also proscribe those acts. Generally, Sunday statutes prohibit the pursuit of one’s regular calling on the Sabbath. As already indicated in our reference above to Hennington and Petit, the claimed purpose is to protect against physical and moral debasement consequent upon uninterrupted labor. It is upon that basis that the prevalent type of Sunday law is sustained. Auto-Rite Supply Co. v. Woodbridge Twp., supra (25 N. J.; at page 192); 50 Am. Jur., Sundays and Holidays, § 9, at p. 808. An identification between seven days of labor and the public health, safety, morals and welfare cannot be denied. Indeed, for all we know, the command at Mount Sinai may also have been addressed to the same objective. At any rate, if the secular and sectarian motivations should be different, the power of the State is not preempted by the circumstance that religion was first upon the scene.

If the Legislature prohibited a seventh day of regular labor without banning work on a specific day, the secular motivation would be unobscured. It is the selection of the Christian Sabbath which suggests religious orientation. But again the Church and State meet on common ground in pursuit of their respective interests. The fact is that Sunday has acquired a special character differentiating it from the other days of the week and this without reference to religious connotation. Today Sunday is many things to many people. It is a day upon which the vast majority of citizens seek respite from the pressures and demands of ordinary routines. To some, it is a day for religious devotion alone. To others, whether or not members of faiths commanding religious observance, it is a secular holiday, a day for play, hobbies, recreation or relaxation. To still others, it is a combination of all of these. It is a day for family and friendly reunions. Most people want Sunday for themselves to do as they feel they should, each to prepare himself in his own way to meet the demands of Monday morning.

Thus the public health and welfare ’ are implicated when the hustle and bustle mount and intrude unreasonably upon opportunities for rest, leisure and diversion. The inroad may be in terms of direct interference as, for example, when commercial activities add to highway traffic to the discomfort of the Sunday driver or otherwise impinge upon a scene conducive to rest, diversion and recreation. The inroad may be indirect but equally real as when those who want to be free on Sunday find the economic aims of their employer compel them to work to hold their jobs, or when the economic impact upon employers requires them and their staffs to remain at the grindstone. Hence we cannot say that Sunday may not constitutionally be selected by the Legislature in pursuit of a purpose to provide relief from the routine. Auto-Rite Supply Co. v. Woodbridge Twp., supra (25 N. J., at page 192); Hennington v. Georgia, supra (163 U. S., at p. 304, 16 S. Ct. 1088, 41 L. Ed., at page 169); Lane v. McFadyen, 259 Ala. 205, 66 So. 2d 83, 85 (Sup. Ct. 1953); Tinder v. Clarke Auto Co., 238 Ind. 302, 149 N. E. 2d 808, 814-815 (Sup. Ct. 1958); Humphrey Chevrolet v. City of Evanston, 7 Ill. 2d 402, 131 N. E. 2d 70, 72, 57 A. L. R. 2d 969 (Sup. Ct. 1956); State v. Weiss, 97 Minn. 125, 105 N. W. 1127, 1128 (Sup. Ct. 1906). The question whether that legislative decision impinges upon the freedom of those who observe religiously the seventh day of the week may be another matter. See Crown Kosher Super Market of Mass., Inc. v. Gallagher, supra (176 F. Supp. 466). It is not before ns, and we intimate no view.

The difficulty with the 1951 revision is that, unlike the usual type of Sunday law, it goes far beyond the objective of a day of respite from uninterrupted labor. It bans (although without present penalty) all forms of recreation. Even walking for pleasure is denounced, except upon approval by local referendum. One is hard put to find a fair connection between such restraints and any known threat to the public health, safety, morals or welfare. The puritanical theme of the act strongly suggests orientation to a sectarian desire to protect the Sabbath as such against “desecration.” If such is not the purpose, then in any event it is difficult to find a basis under the police power for such extraordinary restraint upon individual freedom.

We have discussed this constitutional issue with respect to the 1951 revision with no purpose to decide it. We need not decide it because, for other reasons momentarily to be stated, chapter 119 cannot be upheld if it seeks to implement the policy of the revision. The discussion nonetheless remains useful, for it relates to the same Church-State issue to which we will later refer in dealing with the validity of chapter 119 viewed as an independent statute rather than as a supplement to the prior law.

B.

If chapter 119 merely supplements the 1951 revision, it must be deemed to be addressed to the same evil which the revision found and to the same legislative objective. Upon that premise, chapter 119 cannot be sustained because its classification of what may and may not be sold is wholly unrelated to that evil and objective and accordingly it denies equal protection of the law.

Pew issues are more troublesome than that of classification. In N. J. Restaurant Assn. v. Holderman, 24 N. J. 295, 300 (1957), we said:

“The burden of demonstrating- that a statute contravenes the equal protection clause is extremely formidable, as is attested by the long trail of failure. In addition to the strong presumption of constitutionality with which all organic challenges are approached, one who assails a statute on this ground must contend with principles of unusual elasticity. It is easily stated that the classification (1) must not be palpably arbitrary or capricious, and (2) must have a rational basis in relation to the specific objective of the legislation. But the second proposition is qualified by limitations which compound the difficulties of one who assails the legislative decision. Thus it is not enough to demonstrate that the legislative objective might be more fully achieved by another, more expansive classification, for the Legislature may recognize degrees of harm and hit the evil where it is most felt. [Citations omitted.] The Legislature may thus limit its action upon a decision to proceed cautiously, step by step, or because of practical exigencies, including administrative convenience and expense, * * * or because of ‘some substantial consideration of public policy or convenience or the service of the general welfare.’ De Monaco v. Renton, 18 N. J. 352, 360 (1955). Hence it may ‘stop short of those cases in which the harm to the few concerned is thought less important than the harm to the public that would ensue if the rule laid down were made mathematically exact.’ Dominion Hotel, Inc. v. State of Arizona, supra (249 U. S. [265] at page 268, 39 S. Ct. [273] at page 274 [63 L. Ed. 597]). * * *”

In applying these principles, we must first ascertain the evil the Legislature found and then measure against it the reasonableness of the classification. The evil, as revealed by the scope of the 1951 revision, was an impairment of public health consequent upon uninterrupted labor. Work was found to be consistent with the public welfare only in the area of necessity and charity, the concept of necessity being, as we have already pointed out, exceedingly narrow and tight. More than that, the evil may fairly be said to have been found in virtually all activity, for the revision denounced even recreation except upon local referendum. In brief, the Legislature found the public weal required restraints which in substantial effect would compel rest. Such being the conception of the evil, we cannot fathom any reasonable basis for the differentiation in chapter 119 of the work area embraced in the sale of the items it proscribes from the work area it leaves untouched. The classification accordingly offends the demands of equal protection of the law unless the discrimination may be relieved of its otherwise arbitrary character by resort to the subsidiary rules summarized in the foregoing excerpt from Holderman.

As stated in Holderman, a discrimination which in the nature of the subject matter would otherwise be invidious may be relieved of that character if, generally speaking, a rational basis may be found for it in terms of degrees of evil or in the practical problems inherent in the process of legislating or in enforcement. None of these rules can save chapter 119 from constitutional infirmity.

The reason why a Legislature may strike at an evil where it finds it without first surveying the entire scene in which it may exist even in equal degree is an inescapable concession to the practicalities of a complex social and economic order. The legislative process would be hamstrung if the Legislature had to explore every nook and corner before it acted. But such is not the situation here for in the 1951 revision the Legislature located the evil and indeed found it to exist in every phase of activity other than in works of necessity and charity and the exceptions permitted upon local referendum. Hence the discrimination in chapter 119 cannot be sustained upon the thesis that there was a practical difficulty in ascertaining the extent of the area contaminated by the evil. Nor can it be said that in chapter 119 the Legislature chose to hit the evil where it felt it most for, still upon the hypothesis that chapter 119 implements the policy of the earlier law, the evil had been found worthy of condemnation throughout the entire scene. Nor can it be said that a practical problem of enforcement warrants the discrimination, for quite obviously the prohibition of only some commercial sales serves to create a problem of enforcement which would not exist if the sanctions were addressed to the whole area embraced by the policy of the revision. Hence upon none of these principles can the Legislature, in pursuit of the objective of the revision, discriminate between the commercial activities covered by chapter 119 and those beyond its reach.

We explored still other possibilities in discharge of our duty to sustain a statute if it is possible to do so. Hence we posed the question, can the classification be sustained on the thesis that the Legislature found that despite the lack of penalties the 1951 revision had been complied with by all except those who sold the items covered by chapter 119, and thus the purpose was to introduce sanctions in the area where needed? Prior to the elimination of the meager penalties by the revision of 1951, a number of municipal ordinances were sustained although they selected only some activities for punishment. The theme, quite tongue-in-cheek, apparently was that the court should assume the statutory ban was effective except in the limited areas in which local government added its weight. But, with the repeal of the penal provisions in 1951, the courts could not indulge in an assumption of voluntary compliance with a non-penal measure and hence the reality was acknowledged that such ordinances in truth sought, not to support the state policy, but rather to establish another policy under which some activity would be denounced while other activity equally within the State’s policy continued undeterred. Auto-Rite Supply Co. v. Woodbridge Twp., supra (25 N. J., at page 195); Hertz Washmobile System v. South Orange, supra (41 N. J. Super., at pages 125-126). So here, it would be absurd for us to pretend the Legislature found its toothless declaration of policy in the 1951 revision had been honored by all but the vendors of the articles proscribed by chapter 119. That much we can reject upon the basis of what teemed about us.

Another similar possibility was examined. Prior to the removal of penal sanctions from the Sunday law, it had been held that habitual violations of that law brought the owner of the place within the common-law crime of maintaining a disorderly house punishable under what is now N. J. S. 2A :85-l by a maximum of three years imprisonment and a fine of $1,000. State v. Reade, 98 N. J. L. 596 (Sup. Ct. 1923). The further question we accordingly raised was whether, notwithstanding the elimination of the penal provisions by the 1951 revision, habitual violations of its policy remained indictable, so that chapter 119 might be viewed as a measure intended to impose additional penalties where existing criminal liability had proved inadequate. Counsel who appeared in defense of the statute were unable to agree upon the answer to the question.

We think a ready answer can be found in the notorious fact that Sunday selling had not been dealt with as a crime and hence the Legislature could hardly have intended to bring up reinforcements. At any rate, we cannot find a reasonable basis for the disorderly house approach. It is true that the common-law crime has been applied in this State quite broadly to habitual violations of non-penal prohibitory statutes. See State v. Martin, 77 N. J. L. 652 (E. & A. 1909); Having v. State, 51 N. J. L. 386 (Sup. Ct. 1889), affirmed 53 N. J. L. 664 (E. & A. 1891); cf. State v. Western Union Telegraph Co., 12 N. J. 468 (1953), appeal dismissed 346 U. S. 869, 98 L. Ed. 379 (1953). But in the last analysis it is the legislative intent which must prevail. It is difficult to find that a Legislature which eliminated the penalty of $1 nonetheless desired that Sunday selling be punishable as a full-blown crime with a maximum of three years and $1,000. Cf. In re Vince, 2 N. J. 443, 451 (1949). Surely the legislators who voted for chapter 138 of the Laws of 1958 (declared invalid in Sarner) and for chapter 119, with its provisions for county-wide referenda, would be startled to learn from us that Sunday selling entails such drastic consequences everywhere in the State. No less surprised would be the prosecutors of the 21 counties and the many local enforcement authorities who have not pursued the criminal remedy and who indeed, in the counties in which chapter 119 was adopted, have assisted merchants in determining what may and may not be sold.

Our conclusion that the common-law crime does not apply to Sunday activity was in a sense foreshadowed by the reasoning in State v. Fair Lawn Service Center, Inc., supra (20 N. J., at page 468), in which it was found that the Legislature did not intend a violation of the 1951 revision to be punishable as a disorderly persons offense. We feel fortified in this appraisal of the legislative intent by the fact that both before and after Fair Lawn the Legislature failed to adopt bills introduced to bring the revision within the Disorderly Persons Act, N. J. S. 2A :169—1 et seq. (see 1953-S148; 195<U-S309; 1955-S133 and A-339; 1956-S28 and A64; 1957-A61; 1958-A180 and A215), and to authorize injunctive relief against violations (1955-A430; 1956-A74; cf. 1958-A152 and 1959-A656).

We have explored all conceivable facets in search of a tenable ground to uphold chapter 119 as a supplement to the 1951 revision. We can find none. Hence we must conclude that the classification of chapter 119 is not rationally related to the evil to which the revision was addressed, to wit, the harm consequent upon uninterrupted work and activity, and accordingly, if viewed as a supplement to the revision, chapter 119 would violate the guarantee of equal protection of the law. Upon the stated hypothesis, similar classifications have been held to be arbitrary: Auto-Rite Supply Co. v. Woodbridge Twp., supra (25 N. J., at pages 194, 196); City of Mt. Vernon v. Julian, 369 Ill. 447, 17 N. E. 2d 52 (Sup. Ct. 1988); Henderson v. Antonacci, 62 So. 2d 5 (Fla. Sup. Ct. 1952); Gronlund v. Salt Lake City, 113 Utah 284, 194 P. 2d 464 (Sup. Ct. 1948). See Elliott v. State, 29 Ariz. 389, 242 P. 340, 46 A. L. R. 284 (Sup. Ct. 1926); Ex parte Westerfield, 55 Cal. 550, 36 Am. Rep. 47 (Sup. Ct. 1880); McKaig v. Kansas City, 363 Mo. 1033, 256 S. W. 2d 815 (Sup. Ct. 1953).

Although the foregoing discussion is in terms of equal protection of the law, it serves also to reveal that chapter 119, far from being designed to implement the 1951 revision, actually establishes a new policy of its own, incompatible with the policy of the earlier law, thus inviting the question to which we now proceed, does chapter 119 supersede the revision, and if so, is it vulnerable to the several constitutional challenges levelled by plaintiffs?

III.

As we will later demonstrate, chapter 119 survives the attacks upon it if it is an independent enactment, unanchored to the policy of the 1951 revision. The threshold question is whether chapter 119 did operate to supersede the policy of the 1951 statute.

We must sustain the legislative will if at all possible. To that end we should look through the gloss to the substance of a statute. Thus we recently upheld an enactment as a general law notwithstanding that the Legislature had garbed it as a special one. In re Freygang, 25 N. J. 357 (1957).

Ordinarily the issue of repeal by implication involves the question whether the earlier statute continues in effect. If the later act prescribes a new scheme or approach it will supersede a prior treatment of the matter, De Ginther v. New Jersey Home, etc., 58 N. J. L. 354, 358 (E. & A. 1895); cf. State v. Roberts, 21 N. J. 552, 555 (1956), especially if the policies of the statutes cannot coexist. See 1 Sutherland, Statutory Construction (3d ed. 1943), § 2102, p. 463; 82 C. J. S., Statutes, § 291 (b), pp. 492-3. As the foregoing discussion reveals, on the basis of approach and policy chapter 119 and the 1951 revision are thus incompatible. The 1951 revision embraces the stern policy of general inactivity which we have described. Chapter 119,. on the other hand, embraces a radically different policy, one which denounces but a part of the commercial scene and leaves untouched the right of the individual to follow recreational and other pursuits. It is perfectly plain that in adopting chapter 119 the Legislature contemplated that citizen activities beyond its interdiction will continue unscathed.

Here we have a situation, quite unique, in which the issue is not whether the earlier law may continue notwithstanding the operation of the later statute, but rather whether the later expression of legislative will shall be defeated because of an earlier act. The question is wholly one of legislative intent. We must invoke the normal assumption that the Legislature desired the later expression to prevail unless the statute itself states or the total circumstances strongly imply the contingency that the later act shall fall if it cannot constitutionally coexist with the earlier one.

Chapter 119 does not expressly state that contingency. Nor is it implicit in the characterization of the statute as supplementary to the earlier law. As we have already shown, chapter 119 does not in fact supplement the 1951 revision. We are not dealing with an amendatory or supplementary statute which is so minor that to sustain it at the expense of a pervasive basic statute would be to permit “the tail to wag the dog.” Ordinarily such statutes are so incomplete that they would be virtually meaningless if they survived alone. Here, as we have said, chapter 119 is a complete act of legislation, capable of operation without the aid of the prior law and in fact completely dissociated from its provisions. The use of the words “supplementary” and “additional remedy” is too slim to support a denial of the later expression of the legislative will.

Nor can we find the contingency by implication upon an evaluation of the respective contributions of the statute. On the contrary, a comparison strongly supports the overriding effect of chapter 119, for whereas it will operate to achieve some affirmative end, the 1951 revision would remain but a sterile declaration, seemingly serving but two purposes, both of doubtful utility. The first is to restrain the municipalities in the exercise of their police power, compelling them to choose to do nothing or to conform to the discredited terms of the revision. The second is to permit men to disavow in the name of piety contracts they solemnly make on Sunday, a plea the Judiciary has always rejected whenever events on another day could be seized upon.

The sole remaining circumstance is that at the same session the Legislature also adopted chapter 131, which undertook to exclude from the 1951 revision the sale of perishable agricultural and horticultural products. Erom this, it is argued the Legislature must have intended the 1951 revision to continue. But that circumstance is equivocal. In fact chapter 119 was passed by the Legislature on May 25, four days after it passed chapter 131 and it may well be that the Legislature sent both bills to the Governor only because it did not know whether he would sign chapter 119. Moreover, we are not required to choose between chapter 119 and chapter 131 since the supersession of the revision by chapter 119 also accomplishes the specific result intended by chapter 131.

Hence we find no justification for departing from the fundamental rule that the later expression of legislative will shall prevail over an earlier one. We of course cannot speak with supreme confidence in the unusual circumstances before us, but we feel sustained by the thought that if perchance we misconceive the legislative intent, that body will quickly correct our error without appreciable loss in the interim.

We accordingly conclude that chapter 119 repealed and superseded the inconsistent policy contained in N. J. S. 2A :171—1, 2 and 6 to 12.

This brings us to the question whether chapter 119, thus viewed as an independent statute, is vulnerable to the constitutional attacks before us. We have already indicated it is not. We shall now detail the reasons.

Does chapter 119 offend the ban against Church-State union? We discussed above the relation between an opportunity for surcease from routine pursuits and the public health, safety, morals and welfare. We have pointed out that Sunday statutes prohibiting the pursuit of one’s regular calling have generally been found to be devoid of religious orientation. The challenge to chapter 119 is far less substantial, for chapter 119 cannot be identified in its operative provisions with any sectarian tenet. We know of no religious order which limits its edict against Sunday activity to the sale of the five categories of items prohibited by chapter 119.

The sole basis on the face of the act for a Church-State challenge is the reference in the title to “the observance of the first day of the week” and the statement in section 4 that the act shall be construed as an additional remedy “to secure proper Sunday observance.” Plaintiffs stress the word “observance.” But one speaks of “observance” of holidays, whether secular or sectarian. Although it probably is true that “observe” in conjunction with “Sunday” has a religious overtone, yet it is not necessarily so since to many Sunday is now a secular holiday. At any rate, this scant evidence cannot be held to stamp as religious a statute which in terms follows no sectarian line. The presumption of constitutionality does not yield so easily.

It is true that Sunday legislation was advocated by individuals who, forgetful of the history of the subject, thought it proper for the State to support their own religious dogma. But the validity of a statute does not turn upon the validity of citizen pleas for its adoption. Uor, for that matter, can the Judiciary probe the thinking of legislators themselves. N. J. Restaurant Assn. v. Holderman, supra (24 N. Jat page 301). If a legislator votes for a measure to further some undisclosed, invalid purpose, he is accountable to his conscience alone. The Judiciary may not interfere with the exercise of lawful power upon the assumption that a wrongful purpose caused it to be exerted. McCray v. United States, 195 U. S. 27, 54, 24 S. Ct. 769, 49 L. Ed. 78, 95 (1904).

B.

Plaintiffs also urge the statute seeks to protect the city merchant against his highway adversary. Defendant in fact filed voluminous affidavits expressing the expert opinion that Sunday selling jeopardizes urban business and the value of real property ratables in established shopping centers. Plaintiffs seek to invoke the principle that the police power may not be used to restrain competition merely for the private advantage of a particular group. Moyant v. Paramus, 30 N. J. 528, 545 (1959); Gundaker Central Motors v. Gassert, 23 N. J. 71, 83 (1956), appeal dismissed 354 U. S. 933, 77 S. Ct. 1397, 1 L. Ed. 2d 1533 (1957); Reingold v. Harper, 6 N. J. 182, 192 (1951); N. J. Good Humor, Inc. v. Bradley Beach, 124 N. J. L. 162, 168 (E. & A. 1940). But of course competition may generate problems affecting the well-being of society, and if the hurt warrants legislative intervention to protect the, public interest, it is of no consequence that the solution concurrently redounds to the private benefit of some. Nebbia v. New York, 291 U. S. 502, 525, 54 S. Ct. 505, 78 L. Ed. 940, 950 (1934); Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U. S. 412, 425-426, 57 S. Ct. 772, 81 L. Ed. 1193, 1201 (1937); cf. Breard v. Alexandria, 341 U. S. 622, 626-627, 632-633, 71 S. Ct. 920, 95 L. Ed. 1233, 1239, 1243 (1951).

However, we are not called upon to consider whether chapter 119 is sustainable if the objective were thus economic. The reason is that we have no way of knowing that such was the purpose. The statute itself does not reveal it expressly or by necessary implication, and the fact that economic interests advocated legislation and that defendant introduced affidavits upon that theme does not demonstrate the Legislature was thus motivated. Gundaker Central Motors v. Gassert, supra (23 N. J., at page 83). The act being within the police power upon the thesis discussed in “C” immediately below, to wit, to protect the health, safety, morals and welfare from unreasonable interference with the opportunity of the public to find relief from everyday tensions, there is no need or warrant to debate the sufficiency of conjectural objectives.

C.

We have already described the evil to which the earlier Sunday legislation was addressed. The Constitution, of course, does not confine the Legislature to that conception of the evil. The Legislature may take a different view of the scene and find the evil to be an impairment of public health, safety, morals and welfare, not because of the impact of uninterrupted labor, but rather because of unreasonable interference with the efforts of the vast majority of the citizens to find surcease from the pressures of the work week on the day generally selected by them for that purpose. Such is the conception of the evil which reasonably may be inferred from the title and terms of chapter 119.

The reasonableness of the classification of what may and may not be sold must be judged in the light of that conception of the evil. Upon that basis, classifications may be made which would be inadmissible where the purpose is to compel a day of rest. The legislative body may upon that approach classify operations upon such considerations as the amount of traffic, noise, or other bustle, and weigh those factors against, not necessity or charity, but rather relative utility or convenience to the public. See Hertz Washmobile System v. South Orange, supra (41 N. J. Super., at pages 122-123).

Here the broad power to classify discussed in Holderman, supra (24 N. J., at pages 300-305), comes into play. In the absence of a compelling showing to the contrary, we must assume, as the facts may reasonably be, that the Legislature found the items dealt with by chapter 119 are the ones which, above and beyond all others, are provocative of the problem; that the elimination of their sale on Sunday will remove the undue interference with the opportunity of the citizens for relief from the stress of everyday pursuits. Upon the stated thesis, the Legislature may indeed hit the evil where it is felt most in its quest for a reasonable balance of the interests involved. It may, as it did in Gundaker Central Motors v. Gassert, supra (23 N. J. 71), thus proceed in a single field, the sale of automobiles, without compulsion to search out the evil everywhere. Cf. Amodio v. Board of Commissioners of W. New York, 133 N. J. L. 220 (Sup. Ct. 1945). It may, as in the case of chapter 119, attack the problem in a wider sphere if it finds the evil there warrants legislation in the public interest. The Legislature may proceed experimentally, cautiously, step by step, until it finds the solvent. We must uphold a classification unless it is plainly demonstrated to be capricious. The required showing is not made merely by contrasting items which may and may not be sold. The relative utility of such items may be wholly unrelated to the degree of Sunday activity which their sale incites and to the relief which a ban upon them will accomplish. Uor would it be fatal if incongruities or problems of construction should develop in fringe areas. The Constitution does not demand mathematical perfection. Boyce Motor Lines v. United States, 342 U. S. 337, 340, 72 S. Ct. 329, 96 L. Ed. 367, 371 (1952).

It is worth repeating that the Judiciary is not concerned with the good sense of a statute. Policy matters are the exclusive responsibility of the legislative branch of government. A judge, as a private citizen, may express his opinion at the polls, as every member of this court had the opportunity to do when chapter 119 was on the ballot. But the issue now before us is wholly one of the power of the Legislature to act, and upon that inquiry a judge would usurp authority if his personal view of policy intruded upon his deliberations.

D.

Hence the trial court properly denied plaintiffs’ motion for summary judgment. The proofs advanced did not overcome the presumption of constitutionality. However, we think it was error to grant defendant’s motion for judgment on the pleadings. Eor the purpose of that motion, the allegations of the complaint that the classification in fact is arbitrary and denies equal protection must be accepted as true. Ridgefield Park v. Bergen County Board of Taxation, 31 N. J. 420, 425 (1960). The parties carefully stipulated that defendant’s affidavits would not apply to defendant’s motion. It may indeed be difficult for plaintiffs to maintain their heavy burden of proof but they may not be denied an opportunity to try.

IY.

The remaining issues relate to the referendum provisions of chapter 119.

Section 5 provides the act “shall take effect immediately but shall not become operative in any county unless and until the voters of the county shall determine by referendum held pursuant to this act that the same shall apply therein.”

This, it is first urged, constitutes an unauthorized delegation of the legislative power. Plaintiffs approach the problem from several directions.

One phase of the attack presupposes that chapter 119 depends upon and provides enforcement for the 1951 revision. Upon that approach, plaintiffs say the Legislature undertook to leave to local decision the question whether an established state-wide policy of illegality shall be enforced locally. If the premise were correct, the referendum would be an odd one. Indeed the unusual character of such a referendum and the constitutional problem which it may present simply buttress the conclusion we have already reached that chapter 119 superseded the policy of the revision. We therefore need not consider the issue in those terms. Rather the issue is whether the' Legislature may leave to local option the question whether the provisions of chapter 119, an independent statute with a self-contained policy, shall be operative in the several counties.

The subject of referenda has a long history in this State. It would serve no purpose to review the merits of the conflicting positions fully debated in earlier cases. Paul v. Gloucester County, 50 N. J. L. 585 (E. & A. 1888); In re Petition of Cleveland, Mayor, 52 N. J. L. 188 (E. & A. 1889); Warner v. Hoagland, 51 N. J. L. 62 (Sup. Ct. 1888); Michaelson v. Wall Township, 92 N. J. L. 72 (Sup. Ct. 1918). Suffice it to say that the validity of that technique was well established under the Constitution of 1844 and nothing in the Constitution of 1947 casts doubt upon it.

As we understand plaintiffs, they argue the operative effect of a statute may be left to local decision only if the subject matter is one of local as distinguished from state-wide concern. They cite Wagner v. Newark, 24 N. J. 467, 478 (1957), for the proposition that certain matters are inherently reserved for the State alone (actually the rent control law there involved had a provision for local option; see Jamouneau v. Harner, 16 N. J. 500, 517 (1954), cert. denied, 349 U. S. 904, 75 S. Ct. 580, 99 L. Ed. 1241 (1955)). Granting the limitation which plaintiffs suggest, we find no impediment to the act before us. Although it may be argued that if compulsory rest is the basis for legislation, the problem is of uniform concern throughout the State, yet certainly on the thesis we have found in chapter 119, local differences may well exist in terms of the quantum, and nature of the activity and its impact upon the opportunity for relief from the regular routine. It is generally held that municipalities may be empowered to deal directly with the subject. Auto-Rite Supply Co. v. Woodbridge Twp., supra (25 N. J., at page 193); 50 Am. Jur., Sundays and Holidays, §§ 6 and 7, pp. 804, 805; 6 McQuillin, Municipal Corporations (2>d ed. 1949), § 24.189, p. 768. We see no constitutional reason why the subject is inappropriate for local decision by referendum. We must assume the Legislature, in its discretion, found a reasonable basis for local preference.

And it does not matter that the Legislature selected the county rather than the municipality as the unit for popular expression. The reason doubtless is the fact, to which we alluded earlier, that the problem transcends municipal lines. The county was the unit selected in Paul v. Gloucester County, supra, in which the constitutional problem was explored at great length. See also Noonan v. County of Hudson, 52 N. J. L. 398 (E. & A. 1890). Nor do we see any constitutional difficulty in the fact that the statute visits penal consequences upon a violation, making it a disorderly persons offense. For example, the statute in Paul v. Gloucester County, supra, denounced a violation as a misdemeanor. See Michaelson v. Wall Township, supra (92 N. J. L., at page 78).

Lastly plaintiffs say if the Legislature directly legislated a prohibition in less than all of the counties, the law would be a special one within Art. IY, § 7, par. 9 of the Stale Constitution and a denial of equal protection of the laws and hence the same result may not be achieved by a statute dependent upon local option for operative effect. The same objection was fully considered and rejected in Paul v. Gloucester County, supra (50 N. J. L., at pages 607-609) and Jamouneau v. Harner, supra (16 N. J., at page 521); cf. Wagner v. Newark, 42 N. J. Super. 193, 214-215 (Law Div. 1956), reversed on other grounds, 24 N. J. 467 (1957).

Section 7 prescribed the question to be placed upon the ballot in these words, “Shall the Sunday Closing Law (P. L. 1959, c. 119) apply within this county?” Plaintiffs first say that a “Yes” vote might have meant to some that Sunday selling shall be permitted and a “No” vote the opposite. We cannot strike down the result of an election by assuming linguistic shortcomings in the electorate and a hypothetical confusion mounted upon that assumption.

More impressive is the further claim that “Sunday Closing” was an inaccurate description. Plaintiffs say “Sunday Closing” means complete closing rather than a partial one, and hence the affirmative may have received support which would have gone the other way if the limited scope of the prohibition had been stated. No doubt the question was not a model of clarity. Ear more informative would have been a description revealing that the ban was limited to the sale of certain commodities. Yet “Sunday Closing” does not necessarily mean that everything is shut down. Surely no one would question the description if the act left necessitous work and recreations untouched. A law closing barber shops on Sunday would fall within the generic term of a “Sunday Closing” law as that term is generally used. Hence we cannot assume a purpose to mislead the voters or confidently infer that they were in fact misled.

At any rate, we are satisfied the objection comes too late. The time to protest is before the election, and not, as here, after the event. Elections are solemn events of tremendous public significance. We recently reiterated that in the absence of malconduct or fraud a concluded election will not be voided for an irregularity in the ballot unless it can be said that in all human likelihood it interfered with the full and free expression of the popular will and thus influenced the result. In the Matter of the Alleged Error in the Preparation of the Ballot for the Recall Election in the City of Hackensack, 31 N. J. 592 (1960). The facts do not satisfy that test.

The remaining question is whether it was arbitrary to provide for a referendum on a petition signed by 2,500 registered voters of a county rather than by a fixed percentage of the total voters in the county. It is not contended the number is too high. Rather the point is that it is low in the more populous counties and more exacting in the smaller ones. In that sense, it is charged to be discriminatory. But the legislative approach cannot be said to be arbitrary because another approach may strike one as more logical. The Constitution does not demand only the soundest, the wisest, and the best. Poor judgment is not the test of invalidity. We can find nothing invidious in the legislative decision and no breach of any constitutional barrier. Moreover, again, this is the kind of objection which does not go to the fairness of the expression of the popular will and hence is wholly unattractive when first urged after the election has been held.

Y.

We accordingly conclude that the presumption that chapter 119 is constitutional was not overcome and hence the trial court properly denied plaintiffs’ motion for summary judgment. That order is therefore affirmed. But as we pointed out in III D above the trial court should not have granted defendant’s motion for judgment on the pleadings. Such a motion assumes the truth of the allegations in the adversary’s pleadings, here the allegation in the complaint that the statutory classification is arbitrary and denies equal protection of the law. Plaintiffs are entitled to proceed to a trial of that issue. The order granting that judgment is therefore reversed, and the matter remanded for further proceedings not inconsistent with this opinion. Costs to abide the event.